And justice for all?

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2 November 2009

*Ajit Sahi* has travelled the length and breadth of India investigating the people locked up or killed for being terrorists – and witnessed the official line unravel.

On 17 September 2009, Shamima, the mother of a 19-year-old woman killed by the police just over five years ago, reached New Delhi. She had set out from her home 2,000 kilometres away in a low-income suburban neighbourhood in Mumbai to file a petition before India’s Supreme Court. On 15 June 2004, a police raiding party had shot Ishrat Jahan, Shamima’s daughter, before dawn in Ahmedabad, the capital city of Gujarat state. The police claim that Ishrat and three men they killed that night with her were terrorists of a Pakistani outfit. Travelling in a car, these ‘terrorists’ had fired when the police challenged them. The police said the group planned to assassinate Narendra Modi, a politician who runs the government in Gujarat. Modi is widely accused of allowing his administration to stand by and permit – or even actively connive in – the killings of more than 2,000 Muslims in early 2002, during one of the worst-ever instances of ethnic cleansing in India by rightwing Hindu mobs.

Ishrat’s case is one of the thousands that represent what has gone horribly wrong with India’s counterterrorism strategy, which is now undeniably driven by nothing more than an alarming propensity in the State and its various arms – certainly the police and even the judiciary – to target the Muslim community and randomly brutalize its members. In Ishrat’s case, a judicial officer in Ahmedabad reported on 7 September 2009 that, based on the findings of the Government’s own forensic agencies, the police were lying. The judge stated that Ishrat and her companions were not terrorists killed in an exchange of fire, an act widely known in India as an ‘encounter’. Instead, the judge said, the police had murdered Ishrat and the three men ‘in a systematic manner, cold-bloodedly, mercilessly and cruelly’. In short, there had been no ‘encounter’. They were simply killed elsewhere and their bodies brought to the location, where, hours later, reporters and cameras were brought in.

A day after the judge’s report had become public, the Gujarat government moved the High Court (the middle rung of India’s three-tier judiciary) and quickly obtained a stay order on it. Shamima’s lawyer has petitioned the Supreme Court for the stay to be rescinded. By any reckoning, this won’t be an easy haul for Shamima, the gargantuan body of undeniable evidence in her favour be damned. Four years ago, a few of the same police officers who killed Ishrat were found to be involved in the ‘fake encounter’ of a businessman and his wife, who were also falsely labelled as terrorists. Fourteen of these policemen are in jail since that time, but the case against them has moved at a snail’s pace.

Making the canary sing

The Indian State’s narrative on terrorism runs thus: most terror activities in India are carried out by homegrown terrorist organizations that are backed by the Pakistan Army’s subversive intelligence agency ISI, or by Pakistan-based terror groups such as the Lashkar-e-Tayaba. To the last man, all the members of these outfits are supposed to be Muslims – mostly Indian and some Pakistanis. Therefore, every time there is a bomb blast, or even if there isn’t, the police arrest Muslim men and claim they were part of past, as well as unfolding, conspiracies. Within days of the arrests, the police offer ‘confessions’ of those arrested, who sing like a canary and give out ‘details’ of how they conspired, trained, built bombs, planted and detonated them. A pliant Indian media – its vast array of screaming television channels and newspapers – glibly runs headlines parroting the Government, even though Indian criminal jurisprudence rejects confessions before police as evidence (because the Indian police are notoriously brutal and torture those in their custody) and even though more than 95 per cent of the cases are later proved false in the courts.

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The State’s narrative first began to emerge in September 2001 when, just two weeks after the terror attacks in the United States, the Indian Government banned an organization named the Students Islamic Movement of India (SIMI). The Government said SIMI had been involved in acts of terrorism, and arrested hundreds of its members across India. Until 2008, the Government blamed nearly all terror attacks on SIMI, without offering any evidence, then or later. In February 2008, when the Government proscribed SIMI for a two-year period for a fourth time, I decided to investigate the case against them. By many people’s reckoning, SIMI was an ultra-fundamentalist Islamist organization of Muslim men between 18 and 30 years old, who fantasized, among other things, about the return of the rule of Turkey’s caliphate over the Islamic world.

Over three months in 2008 I travelled across 11 cities, attending the hearings of a statutory tribunal constituted to adjudicate if the Government’s ban had merit. I met dozens of former SIMI activists, including those who had spent years in jail on false charges, only to be freed after the absurd charges against them could not stick. I studied more than 150 such cases, and found them to be brazen and bizarre fictions. Indeed, Tehelka, India’s most fearless publication, for which I am a reporter, published my stories under the cover headline: ‘The SIMI Fictions’.1

Similar tribunals set up by the Government in 2001, 2003 and 2006, supposedly independent, had mindlessly rubber-stamped the Government’s case and upheld the earlier bans on SIMI. The Government had hoped for the same from the 2008 tribunal. But Geeta Mittal, a judge of the Delhi High Court who headed this tribunal, showed extreme courage and judicial independence in throwing out the ban, calling it unsubstantiated. All hell broke loose on 5 August 2008, as she delivered her report. The very next morning, the Government approached the Indian Supreme Court, which swiftly granted a stay on the tribunal’s order. More than a year later, the Supreme Court is still to rule on that case.

Creating a chimera

The loud chest-thumping by the Indian Government, its police and security agencies with regards to terrorism is based on shockingly little evidence. Of the string of terror attacks in India (outside the disputed region of Jammu and Kashmir) over the last few years, nearly all have been timer-based bombings. Only two major events have been physical attacks by gunmen: the December 2001 attack on the Indian Parliament and the November 2008 assault on five-star hotels in Mumbai. Outside the state of Kashmir, there hasn’t been one suicide bombing, a major surprise because Islamist extremists have been prone to strap bombs on themselves, everywhere from Iraq to Afghanistan to Pakistan. The bombings themselves have almost always been in middle-class markets, or Government hospitals, rather than on high-profile places such as the offices of security agencies, or on police headquarters, as is often seen elsewhere.

Many commentators have now begun to wonder if the police aren’t creating a chimera of Indian Muslims turning to terrorism by the droves. In 2008, police in the western Indian state of Maharashtra arrested members of a little-known fascist Hindu outfit who had allegedly sworn to target Indian Muslims as a counter-attack on the ‘terrorists’. (India’s religious majority of Hindus constitute 80 per cent of its 1.1 billion people.) Several independent citizens’ inquiries have concluded that another infamous ‘encounter’ of two Muslims, one of them a teenager, carried out by police in a Muslim neighbourhood of New Delhi on 19 September 2008 was fake, and that the duo killed were not terrorists.

The story continues endlessly. On 16 August this year, a day after India, the world’s largest democracy, celebrated the 62nd anniversary of its Independence, I sat opposite Ghulam Akbar Khotal in his lawyer’s small room in a multi-storeyed neighbourhood of downtown Mumbai. Khotal, 39, owns a catering business with his brothers in a township named Kalyan near Mumbai. The only one of his siblings never to have gone to school, Khotal sports the devout Muslim’s flowing beard, but dresses nattily in a striped full-sleeved shirt and dark blue trousers. His mien relaxed, he chats freely, although in a low tone, smiles much, sometimes grins, and doesn’t reflect any of the anger that by rights should burn him up, given what the Indian State has subjected him to since September 2001.

Khotal had been released on bail only a month before I met him, after more than three years in prison. Before this incarceration, he had spent another two years behind bars, the two jail terms separated by only a few months of freedom. Khotal’s alleged crime is conspiring to and carrying out bombings in Mumbai. The evidence against him is non-existent. And yet the courts repeatedly denied him bail and refused to entertain his pleas that the police were brutally torturing him to force him to ‘confess’ to a crime he said he hadn’t committed. In this way, in yet another case of counterterrorism, the Indian judiciary meekly fell in line with the Indian State and failed to secure justice for a bona fide Indian citizen. So what was Khotal’s true crime? He had once been a member of SIMI. Over the last eight years, the police have failed to establish a single charge against him.

Having met hundreds of innocent fellow Indians who have suffered Khotal’s fate because they are Muslim, I shudder and wonder: is it likely that the Indian Government’s fantasy about Muslim terrorists could one day become self-fulfilling?

This article is from
the November 2009 issue
of New Internationalist.
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